Com. v. Birdseye

• Citation: 637 A.2d 1036,432 Pa.Super. 167
• Parties: COMMONWEALTH of Pennsylvania v. William Robert BIRDSEYE, Appellant (Two Cases).
• Decision Date: 04 March 1994
• Court: Superior Court of Pennsylvania

Page 1036

637 A.2d 1036

432 Pa.Super. 167

COMMONWEALTH of Pennsylvania v. William Robert BIRDSEYE, Appellant (Two Cases).

Superior Court of Pennsylvania.

Argued Nov. 30, 1993.

Filed March 4, 1994.

Thomas A. Crawford, Jr., Pittsburgh, for appellants.

Thomas N. Farrell, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before ROWLEY, President Judge, JOHNSON and MONTGOMERY, JJ.

JOHNSON, Judge:

We are asked to determine whether prostitution is an offense dangerous to life or limb within the sweep of both federal and state wiretapping statutes so as to warrant wiretapping for investigations of conduct promoting prostitution. We find, on the record presented on this appeal, that the trial court committed no error in concluding that promoting prostitution does involve danger to life or limb, and that the Pennsylvania Wiretapping and Electronic Surveillance Control Act was not violated. Accordingly, we affirm the judgments of sentence.

A jury found the Birdseyes guilty of the following charges: corrupt organizations, 18 Pa.C.S. § 911(b)(3); promoting prostitution, 18 Pa.C.S. § 5902(b)(7); selling obscene materials (two counts), 18 Pa.C.S. § 5903(a)(2); interception of wire communications, 18 Pa.C.S. § 5703(1); and, possession of intercepting devices, 18 Pa.C.S. § 5705(1). Post-trial motions were filed and denied. Father was sentenced to not less than five nor more than twenty years' imprisonment, and Son was sentenced to not less than three nor more than twenty years' imprisonment. Motions to modify their sentences were denied, and these appeals followed.

The trial judge, the Honorable Raymond A. Novak, summarized the facts as follows:

The defendants are the owner-managers of several adult bookstores in Western Pennsylvania, one of which was located in Allegheny County. They were accused of maintaining a Corrupt Organization by using the bookstores for prostitution and the sale of pornography. The Commonwealth called many witnesses, including undercover state troopers, former employees of the Birdseyes' store, former customers, former associates and even prostitutes who used the Birdseyes' facilities. Additionally, the Superior Court of Pennsylvania authorized a wiretap of various telephones and the police obtained hundreds of taped telephone calls, a great number of which were introduced into evidence in the case.

The Commonwealth's evidence tended to show that the Birdseyes were intimately involved in the operation of the bookstores. Two male prostitutes testified that they used the defendants' bookstores for purposes of engaging in prostitution. The former manager of one of the stores testified that the use of the facilities by prostitutes was open and notorious; moreover, he testified about the alteration of the video booths with "glory holes" for purposes of engaging in sexual contact between the video booths. Many of the tapes indicated that [Son] would add holes and have some covered up from time to time; the carpenter who cut the holes between the video booths also testified. A state trooper testified that he purchased a magazine entitled, "Tortured Ladies," and a video entitled, "Breeders," from the Boulevard Bookstore in downtown Pittsburgh....

A separate operation stemming from the bookstores involved only [Father]. He managed a "bachelor party" operation. Many of the tapes consisted of recorded phone calls between [Father] and prospective customers about hiring dancers for bachelor parties. [Father] told the callers that there would be an additional charge if the caller wanted the dancers to "play" after the party. Dancers testified about their performance at various parties. Two customers testified about the bachelor parties which they arranged through [Father]. Moreover, state troopers testified about an undercover operation in which they arranged for dancers and also, for an extra $200, for the dancers to "play" afterwards.

Finally, the defendants were charged with illegally taping the conversations of their employees, and in this regard, [a t]rooper testified about recovering the recording devices from their stores during the execution of a search warrant.

The defendants testified in their own behalf and indicated that they did not promote prostitution and ran a legitimate business.

Trial Court Opinion, dated November 7, 1991, at 3-5 (citations omitted).

On appeal, the Birdseyes argue that (1) the evidence was insufficient to sustain the verdict; (2) the verdict was against the weight of the evidence; (3) the interception of their wire communications violated Title 18 of the United States Code; (4) the interception of the wire communications was without sufficient probable cause; (5) the trial court abused its discretion by denying their motion to sever; (6) they were denied sufficient discovery; (7) they were denied sufficient particulars; (8) they were denied compulsory process; (9) they were denied the right to confront witnesses; (10) their right to present their case was limited; (11) the jury was erroneously instructed; and, (12) the sentence was improper.

The Birdseyes first assert that there was insufficient evidence to sustain the charges of corrupt organizations, promoting prostitution, obscenity and wiretapping. The Birdseyes also contend that Father was entrapped by government agents concerning his corrupt organizations charge based upon female prostitution. In presenting their argument on these issues, however, the appellants neither cite to the record nor do they cite to any case law to support their allegations. As a result, we will not review this argument and find that these issues have been waived. Pa.R.A.P. 2119 and 2132; Commonwealth v. Shaw, 494 Pa. 364, 370 n. 3, 431 A.2d 897, 900 n. 3 (1981) (failure to elaborate on mere assertion in brief that admission of confession violated fifth amendment results in waiver); Commonwealth v. Badman, 398 Pa.Super. 315, 322-23 n. 2 and n. 3, 580 A.2d 1367, 1370 n. 2 and n. 3 (1990) (issue waived if argument is mere assertion); Commonwealth v. Long, 367 Pa.Super. 190, 197-98, 532 A.2d 853, 857 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988) (we will not review issues that are not properly developed by citation to the record and reference to supporting case law).

As their second issue, the Birdseyes maintain that the verdict was against the weight of the evidence for the same reasons that the evidence was insufficient to sustain their convictions. However, sufficiency of the evidence claims are distinct from weight of the evidence claims, as there are different standards of review as well as separate remedies involved. Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). Indeed, in making a claim that the verdict was against the weight of the evidence, it is conceded that there was sufficient evidence to sustain the verdict. Commonwealth v. Murray, 408 Pa.Super. 435, 439, 597 A.2d 111, 113 (1991),appeal denied, 529 Pa. 668, 605 A.2d 333 (1992), citing Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). Moreover, the Birdseyes failed to provide any separate argument in support of the weight of the evidence issue. Because the Birdseyes failed to distinguish between their sufficiency and weight of the evidence claims and presented no argument regarding the weight of the evidence, we deem their weight of the evidence issue waived. See Long, supra; see also Whiteman, supra (boilerplate allegation that verdict was against weight of evidence waives issue).

In their third issue, the Birdseyes argue that the trial court erred in finding that a judge of this Court, the Honorable Zoran Popovich, lawfully issued search warrants allowing the interception of wire communications. They contend that Title III of the Omnibus Crime Control & Safe Streets Act of 1968 (Title III), 18 U.S.C. § 2510-2520, prohibited the authorization of the wiretaps. Title III provides that state investigating agencies may utilize wiretaps:

when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marijuana or other dangerous drugs, or other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than one year....

18 U.S.C. § 2516(2). The Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S. § 5701 et seq., sets forth the following:

§ 5708. Order authorizing interception of wire or oral communications

The Attorney General ... may make written application to any Superior Court Judge for an order authorizing the interception of a wire or oral communication ... when such interception may provide evidence of the commission of any of the following offenses, or may provide evidence aiding in the apprehension of the perpetrator or perpetrators of any of the following offenses:

* * * * * *

(2) Under this title, where such offense is dangerous to life, limb or property and punishable by imprisonment for more than one year:

* * * * * *

Section 5902 (relating to prostitution and related offenses)

* * * * * *

(5) Any offense set forth under the act of November 15, 1972 (P.L. 1227, No. 272) [Corrupt Organizations statute].

18 Pa.C.S. § 5708. The trial court found that the crimes listed by the Commonwealth in the wiretap request satisfied the requirement of 18 U.S.C. § 2516(2) that the crime be "dangerous to life, limb, or property." Judge Novak explained:

In its brief opposing the motion to suppress, the Commonwealth asked this court to take judicial notice of the Surgeon General's report on AIDS [Acquired Immunodeficiency Syndrome]. After considering briefs on this issue, this court declined to take judicial notice of the entire report, but did take notice of the fact that at the time of the Commonwealth's application to the Superior Court for the wiretap (1986), our country was experiencing a health crisis brought on by a sexually...